COUNTING THE VOTE

COUNTING THE VOTE; Arguments Before Florida's Supreme Court on the Presidential Recount

Published: November 21, 2000

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JUSTICE PARIENTE. Are you asking us to resolve that issue as to -- that is, if so even if we said that everyone had the chance for a window period to request a recount in whatever other counties are in question, are you saying that it is the position of -- you're representing Governor Bush?

MR. CARVIN. Yes, I am.

JUSTICE PARIENTE. The position of Governor Bush that he would not go along with wanting recounts in the other counties because the process is flawed?

MR. CARVIN. No, Your Honor. I think we should follow the process that's set out in the statute.

JUSTICE PARIENTE. But I'm asking you that question. Is that you're saying it's -- that recounts weren't requested because there was a belief that the process was flawed.

MR. CARVIN. Right.

JUSTICE PARIENTE. What part of the process was flawed?

MR. CARVIN. Well, as has been indicated, we think the process is entirely subjective, subject to mischief, and most important --

JUSTICE PARIENTE. The manual recount process.

MR. CARVIN. Well, the process, for example, that we were discussing in Broward County today.

JUSTICE PARIENTE. And isn't that the exact process that is set forth by, as has been represented to us, as the statutes reveal, in Texas law for this exact process to take place where there's manual recounts and that those are preferred over the machine recount?

MR. CARVIN. I really don't know what Texas law is. I know in Florida, though, there is no preference for manual recounts over machine recounts.

JUSTICE ANSTEAD. But the statute provides the opportunity for a manual recount.

MR. CARVIN. Right. But it require --

JUSTICE ANSTEAD. And so then the legislate -- if that is the case then the legislature should delete that from the statute.

MR. CARVIN. No, no. Obviously they coexist quite comfortably. It says you've got to get your returns in in seven days. That's the mandatory part of the statute. You have an option to do a manual recount or two other things if you find that there is a problem or you don't have to do a manual recount at all.

JUSTICE PARIENTE. So you wouldn't have objected if the county had completed it within seven days -- the manual recount?

MR. CARVIN. Oh yes -- no -- it's -- I want to really emphasize the point here that notwithstanding petitioner's position, the secretary did not express any preference for machine counts over manual recounts. She expressed a preference for timely returns over those that were two or three weeks late, whenever they will come in. There are manual recounts in the certified numbers that she will certify when and if this injunction is lifted. There is no preference because the secretary, like the legislature, is agnostic as to whether or not you use the machine recount or a manual recount. They make no judgment as to which one was more accurate. Which is really the basic flaw in petitioner's argument. They want this court, on the basis of no evidence, to enter a judicial fiat that the only way to determine a voter's intent is through manual recounts. But we do know what the voter's intent is, at least presumptively, because we have certified returns from 67 counties sitting in the secretary's office. Those votes have been tallied and calculated in precisely the same way that every Florida election up until this time has been calculated. And no one has ever suggested that it is somehow inherently flawed.

JUSTICE ANSTEAD. What is the purpose, then, of having a statutory scheme that allows for manual recounts at the option of these local canvassing boards?

MR. CARVIN. I assume it's because in some circumstances maybe manual recounts, the legislator thought, would be preferable. And they said, Look, if in your circumstance you want to do it this way, go ahead and do it. But you've got to do two things if that's your preferred course. The first is you have to do it quick. And if you have problems doing it quick, you need to assign enough people to get the job done. We understand, obviously, that larger counties are going to have a lot more votes to count. But we also understand that larger counties have a lot more money and resources and staff that they can devote --

JUSTICE ANSTEAD. So, effectively, if you're asked on the sixth day to do it, the answer has to be no -- in a large county -- because it can't be done.

MR. CARVIN. Remember, your honor, it is --

JUSTICE ANSTEAD. -- Would you just answer that question? Effectively, if you're asked on the sixth day, that is the local canvassing board, the answer has to be no because in a large county it can't be done.

MR. CARVIN. I would think that's true. But who is that unfair to? The candidate? The losing candidate who has waited and waited and waited before he even asked that this process begins? Surely if he thinks a manual recount will affect the outcome of the election, it's utterly improbable that he will wait until the time when the recount can't be done before he even makes a request. So I don't think that's a glitch in the statutory scheme.

JUSTICE ANSTEAD. Have you researched the statutes in other states to compare them to Florida's?

MR. CARVIN. I'm not aware of whether they're mandatory or not. I know that there's never --

JUSTICE ANSTEAD. I'm just asking whether you have researched other states to see whether they have comparable statutory schemes. Have you?

MR. CARVIN. No, I'm not aware of --

JUSTICE ANSTEAD. I mean you haven't researched other states is what your answer is.

JUSTICE CARVIN. No, no. No.

JUSTICE ANSTEAD. You haven't. O.K.

MR. CARVIN. I was thinking --

JUSTICE SHAW. Did I understand your previous answer to be that you would not be interested in opening up this window of opportunity under any circumstances to -- since you believe that there is -- the system is flawed?

MR. CARVIN. Your honor --

JUSTICE SHAW. Was that your answer?

MR. CARVIN. My answer is that anything which departs from the rules that were set before Nov. 7, before the election, by the Florida legislature, would be gross abuse of discretion and impermissible. And that's why we have deadlines. And that's why we have uniform rules. Because we want election contests to be decided, not in this fevered partisan environment where everyone knows that the way they proceed in counting ballots and, or whether they use a two-corner rule versus a dimpled ballot, it may well affect the outcome of the election. Because that introduces subjectivity and partisanship into it. And that is why it is very important that we follow the rules that are set forth in the statute, that were written by the legislature long ago.